Amnesty’s criticism stemmed from the fact that the prosecutor’s office claimed that “it cannot consider allegations of crimes committed during the conflict unless the relevant UN bodies or ICC states parties determine that the Palestinian Authority is a state.”

However, Amnesty said, this determination is one that belongs in the hands of judges, not the prosecutor:

“This dangerous decision opens the ICC to accusations of political bias and is inconsistent with the independence of the ICC. It also breaches the Rome Statute which clearly states that such matters should be considered by the institution’s judges,” said Marek Marczyński, Head of Amnesty International’s International Justice campaign.

Since Israel is not a signatory to the Rome Statute, which established the ICC, the court cannot consider cases against it unless another state that is a signatory refers the case, or the case is referred directly by the UN Security Council.

These provisions help ensure that the ICC can only be used against politically weak states, and that Israel and its international sponsors preserve their impunity. Notably, virtually all the cases so far taken up by the ICC are in Africa.

The Obama administration has pledged to use its UN veto to protect Israel from any accountability for war crimes.

The ICC prosecutor’s politically-biased decision represents another setback for Palestinians seeking to end Israel’s decades long immunity and impunity.

Full Amnesty International Press Release

A “dangerous” statement by the office of International Criminal Court (ICC) prosecutor that it cannot consider allegations of crimes committed during the 2008-9 Gaza conflict means Palestinian and Israeli victims seem likely to be denied justice, Amnesty International said.

The Office of the Prosecutor today said that it cannot consider allegations of crimes committed during the conflict unless the relevant UN bodies or ICC states parties determine that the Palestinian Authority is a state.

“This dangerous decision opens the ICC to accusations of political bias and is inconsistent with the independence of the ICC. It also breaches the Rome Statute which clearly states that such matters should be considered by the institution’s judges,” said Marek Marczyński, Head of Amnesty International’s International Justice campaign.

“For the past three years, the prosecutor has been considering the question of whether the Palestinian Authority is a “state” that comes under the jurisdiction of the ICC and whether the ICC can investigate crimes committed during the 2008-9 conflict in Gaza and southern Israel.”

“Now, despite Amnesty International’s calls and a very clear requirement in the ICC’s statute that the judges should decide on such matters, the Prosecutor has erroneously dodged the question, passing it to other political bodies.”

“Amnesty International once again calls on the Prosecutor to follow the procedures established by the Rome Statute by passing the matter to the judges, rather than frustrating efforts to bring justice to Palestinian and Israeli victims of the Gaza conflict.”

Comments

This is nothing but a travesty of justice! Every day the Palestinians are brutalised by their occupiers with impunity and US,UN, EU and the ICC are allowing this state terrorism to continue with impunity. There is no empire that survived for ever. It is enevitable that the long suffering Palestinians will eventually get their natural justice if mankind continues to fail them. Like South Africa where their invincibility came to an end ,things will take the natural course. The ICC is just one of the tools for justice and without doubt if they fail in their duty, justice will prevail upon them also. My heart bleeds for the long suffering people in Palestine.

Could a well-motivated more-or-less-neighbor state bring charges in ICC w.r.t. the Palestinian territory? Turkey for example? Lebanon? Or are crimes outside the scrutiny of ICC if the territory is not that of a sovereign-signatory-state? (Palestine is signatory but not precisely sovereign -- though states under occupation ought to be able to bring cases -- and maybe also not a state. AGREED the court should decide, and prosecutor should submit the "state" question as a preliminary to submitting the whole case.

We can still take action at the ICC right now by exploiting the concept of 'aiding and abetting' re the big players who support Israeli actions in the OPTs. This route is important for circumventing the problem of Israel as a non-signatory to the Rome Statute. It means one can target key individuals in European governments as 'aiding and abetting' (they ARE signatories to the Rome Statute) as long as one can identify Israeli individuals as the 'principal offenders'; that is easy of course. A Court decision in this circumstance would undermine the current EU support of Israel. The fact that Israel is not a signatory is irrelevant in this situation. The crime in question is 'aiding and abetting'. Best to adopt a tangential approach rather than head on. Anyone can submit a Proposal to the Prosecutor of the ICC. All of you, submissions to the ICC.........NOW.

Neither the Rome Statute nor the Vienna Convention give the Prosecutor the authority to reject an article 12(3) Declaration from a State member of a UN specialized agency, like UNESCO.

The state parties to the Rome Statute have given third states the right to accept the jurisdiction of the Court. Their acceptance triggers concomitant obligations contained in Part 9 of the Statute applicable to State Parties, pursuant to Rule 44 of the ICC Rules of Procedure and Evidence.

The Vienna Convention on the Law of Treaties applies to any treaty, like the Rome Statute, that serves as the constituent instrument of an international organization (Article 5). The Convention codifies the rules of customary international treaty law. It recognizes State members of UN specialized agencies among the categories of States that are competent to conclude treaty agreements (Articles 6, 81, and 83) and it provides that obligations and rights accepted by third states in writing cannot be modified or revoked without the consent of all the parties to the treaty or the third state itself (Articles 35-37).